36 posts from February 2016

02/29/2016

In my previous post, I noted that Jack Balkin had argued that liberal constitutional theorists are likely to adopt more activist constitutional theories if Justice Scalia’s vacancy is filled by a liberal justice. I argued that this would be improper, as it would involve the constitutional theorists engaging in strategic behavior rather than a principled approach.

Jack has written a response, claiming that I had misinterpreted him to be endorsing this change rather than simply predicting it would occur. While I am not sure that this was entirely clear in his post, if Jack says that is what he meant, then I am willing to accept it.

While we are on the subject of misinterpretations, I should note that Jack interprets me as claiming that he and other liberal theorists actively support this strategic, bad faith approach. But to begin with, I never said anything about Jack engaging in such strategic behavior. I merely said that he was acknowledging that his liberal brethren were engaging in it. In other words, even liberals were admitting that other liberals were engaging in strategic behavior. That is different than saying Jack was advocating it.

But putting to the side what Jack was saying, my post was not entirely about Jack. I also noted that Dick Fallon had advocated adjusting one’s constitutional theory based on changing circumstances. Thus, Jack cannot deny that a very highly respected liberal constitutional theorist actually recommends engaging in this practice, although Dick does note its dangers.

Jack’s post covers a significant amount of ground, and so I can’t comment on all of it. But there are three points I’d like to make. First, Jack discusses the issue of individuals changing their views. I certainly don’t want to condemn all such changes. While I have been pretty consistent in my views since entering the academy, I have changed on some matters and I am proud of those changes, not ashamed of them. But not all changes are equally praiseworthy. It is one thing to change your mind because you believe you were wrong as a matter of accuracy or principle. It is another to change in ways that support your agenda. For example, one can certainly legitimately change one’s mind about the desirability of the filibuster. But when you support the filibuster when you are in the Senate minority and then oppose it when you are in the majority, you are open to the charge of being strategic and unprincipled. Perhaps some people in this situation are not being strategic, but a self aware individual would recognize that their change in position is very convenient.

Second, Jack suggests that matters differ when it comes to consistency across generations. Younger liberals are not responsible for the positions of older liberals. Each generation must make up its own mind, based on its own experiences. There is much to be said for this, but being from a different generation does not excuse inconsistency. In my previous post, I noted that liberal New Dealers dispensed with economic liberty on judicial restraint grounds, but then the liberal Warren Court (and the Burger Court) embraced sexual privacy, despite its activism. The Warren Court was not responsible for the New Deal, but it was responsible for the inconsistency of embracing Roe (technically a Burger Court case), but rejecting Lochner. Modern defenders of precedent based approaches who say little about the New Deal’s radical change in constitutional law are equally open to the charge of inconsistency.

Finally, Jack notes that the charges of inconsistent strategic behavior might be leveled against conservatives. Yes. When conservatives are strategically inconsistent, they should be criticized. That said, I’m not sure that I agree with the example that Jack provides. He argues that conservative theory has moved from a judicial restraint view, when conservatives were a minority, to a more judicial engagement view that is more activist. If conservatives did this strategically, then they would be subject to criticism. But I’m not sure if, and if so, to what extent, they have. For what it is worth, my own view about these matters – enforce the original meaning without a bias for restraint or activism – has not changed since at least the 1980s. Jack mentions Randy Barnett’s defense of judicial engagement, but in Randy’s case, his conversion to originalism suggests the opposite of what Jack suggests. Randy was a nonoriginalist libertarian before moving to an original public meaning version of originalism. If anything, his conversion to originalism would have limited his ability to enforce his preferred views, not enhanced it. More generally, most of the people advocating judicial engagement are libertarians who have long had a more activist approach to constitutional adjudication.

Nelson Lund (George Mason University School of Law) has posted In Defense of Presidential Signing Statements (Debating the Presidency: Conflicting Perspectives on the American Executive, Richard J. Ellis & Michael Nelson eds., CQ Press, 4th ed, forthcoming) on SSRN. Here is the abstract:

This short essay defends the use of presidential signing statements against a misguided attack by an ABA report, which was signed by a number of prominent academics and leaders of the bar. Posing as a champion of the rule of law and the will of Congress, the ABA hysterically objected to George W. Bush’s statements about his constitutional authority without evidence that his views led his administration to refuse compliance with any statutes. President Obama has continued to issue signing statements, often indistinguishable from those issued by President Bush. More significantly, he has frequently engaged in actual defiance of the will of Congress. The ABA, however, has not denounced Obama a threat to the rule of law and the separation of powers, which confirms that its denunciation of signing statements was really just a politically motivated canard.

The abstract under-sells the essay somewhat. The essay is a crisp clear (and short!) textual and practical rejection of the President's supposed "veto-or-enforce" duty regarding statutes.

On the other hand, even if the ABA was politically motivated in denouncing President Bush's signing statements (and I don't doubt it was), that doesn't mean it was wrong. A good counterpoint is in Saikrishna Prakash's new (and outstanding, but not short) book, Imperial from the Beginning, pp. 304-309.

Some statutes delegate authority to administrative agencies while others do not. Far less well known is that some statutes are self-executing while others are not. That is, some statutes announce legal norms that govern as of the statute’s effective date, while other statutes announce no such norm in advance of agency or other official action. Maintaining a practical distinction between self-executing and non-self-executing statutes can be challenging, but the models are different and they coexist in our legal system today. Some famous modern statutes create law to govern social life even if an agency fails to act or flunks judicial review (e.g., parts of the Controlled Substances Act of 1970 and the Dodd-Frank Act of 2010), while other equally famous statutes depend on successful agency action to create such law (e.g., parts of the Clean Air Act of 1970 and the Affordable Care Act of 2010). This paper specifies trade-offs across modern self-executing and non-self-executing statutes, identifies forces that lessen without eliminating the differences, and finds that courts have not effectively opposed either model. These model choices are more political and policy-based than judicial or constitutional. When combined with other dimensions of choice such as specificity, breadth, complexity, personnel appointments, material resources, and decision sequencing, we can better understand the basic elements of statutory design and, therefore, the architecture of our legal system.

The idea of self-executing and non-self-executing statutes should be helpful in understanding the complicated (perhaps unnecessarily complicated) idea of non-self-executing treaties. (See my thoughts here).

“Publius,” the collective author of The Federalist, was not just a polemicist and normative theorist but also a political scientist. We argue that the political psychology, and institutional predictions that comprise The Federalist are best understood as political science, because the predictions could be – and were – revised in light of “that best oracle of wisdom, experience” (Federalist 15). After outlining some “maintained hypotheses” about human nature that undergird The Federalist, we describe three respects in which James Madison revised, in light of post-1790 experience, Publius’ institutional predictions. The Federalist pressed the view that the national legislature would be the most powerful branch, requiring the Constitution to bolster the implied powers of the executive, limit states’ power, and dampen direct popular participation by the People themselves. After the successes of Hamilton’s initiatives demonstrated the potency of the Presidency during the 1790s, Madison radically revised all three of these institutional predictions, calling for limits on implied presidential powers, a broad construction of states’ reserved authority, and, most dramatically, popular participation through disciplined political parties. Rather than view these revisions as abandoning the political theory of The Federalist, we argue that Madison and Hamilton both retained Publius’s foundational normative assumptions, while revising their predictions about institutional behavior in light of the empirical evidence – precisely the proper response of an empirically oriented political scientist. In this sense, Hamilton’s and Madison’s post-ratification breach was less a retreat by either from Publius’ political theory and more a confirmation of the status of The Federalist as, in part, political science revised in light of political experience.

Did the Constitution create a laissez-faire government-market system? This question is crucial to constitutional jurisprudence today. Conservatives often assert that originalism is the best (or only) method of legitimate constitutional interpretation. Originalism supposedly requires judges to uphold either the original public meaning of the Constitution or the Framers' intentions. On the Roberts Court, Justices Scalia and Thomas are avowed originalists, though the other conservative Justices are not averse to invoking originalist arguments or joining originalist opinions. Empirical studies show that the Roberts Court, because of its conservatives, is the most pro-business Court since World War II. Both of these judicial characteristics -- originalism and a pro-business orientation -- were on display in Citizens United v. FEC. In a five-to-four decision, the conservative bloc invalidated statutory limits on corporate (and union) spending for political campaign advertisements. The majority opinion concluded with an originalist flourish: "There is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations." Citizens United is not unique. In case after case, the conservative Justices act like market fundamentalists, protecting corporations and the marketplace from government regulations even in free-expression cases like Citizen United.

(Note: the article is principally a response to Richard Epstein's The Classical Liberal Constitution. The Citizens United point seems mostly a non sequitur, as the question of political speech by people organized as a corporate nonprofit would appear to be unrelated to whether one is "laissez-faire" in economic policy. But framed as a response to Epstein it's an interesting inquiry).

Whatever happens on the Supreme Court, Balkin is right to emphasize that originalism is a significant presence in the legal culture more generally. Its supporters are unlikely to just pack up and go away merely because the current Supreme Court turns against them. Modern originalism began as an oppositional movement attacking the decisions of a largely nonoriginalist Supreme Court in the 1960s and 70s. It could potentially become one again.

In that respect, it is worth emphasizing that originalism – like other constitutional theories – rarely achieves its greatest impact by immediately influencing the Supreme Court justices of today. Rather, influential academic theories have their greatest impact on the younger generation of lawyers and jurists who – unlike most Supreme Court justices – often have not yet formed strong opinions on major constitutional issues. The biggest impact of early twentieth century legal realism, for example, was not on then-sitting Supreme Court justices. It was on the generation that followed, which ended up forging the New Deal revolution in constitutional law. The same thing may turn out to be true for the originalist theories that have achieved prominence over the last twenty to thirty years.

Originalism became a thing only because Justice Scalia and his academic followers believed that originalism was more than a rhetorical trope. It was this claim that energized and inspired the conservative legal movement—the claim that the constitution, properly understood, actually embodied conservative values. As this claim loses its influence over judicial decisionmaking, the conservative legal movement will look elsewhere for a unifying ideology.

02/24/2016

News reports indicate that Donald Trump has at least indirectly raised the question. So here is my answer (yes, more clearly than Ted Cruz). The short version: longstanding English common law recognized all people born in England as natural born subjects (with a couple of exceptions not relevant to Rubio), regardless of whether their parents were aliens. Blackstone is extremely clear on the point. U.S. practice and commentary after ratification show that this rule was carried over into U.S. law, perhaps with some debate at the margins but not with respect to people in Rubio's situation. (More at the link).

My longer draft article on the meaning of natural born gives further support for the argument in the linked post.

Both Executive Power Vesting Clauses and clauses equivalent to Article II’s Faithful Execution Clause were prevalent in early state constitutions that nonetheless fractured gubernatorial control over state bureaucracies. Originalist defenders of a unitary executive reading of the federal Constitution nonetheless dismiss the interpretive significance of the pre-1787 state constitutions. These early texts supposedly paid only lip service to separation of powers principles, while presenting the Framers chiefly with examples of government structure to avoid. The core problem with this originalist stance is that state constitutions written in the first decades after 1789 persisted in using the same clauses, now found also in Article II, to describe state governments in which governors continued to lack unitary control. Close study of the state constitutions and state administrative practice under them thus belie any “unitary executive” reading of Article II that purports to be based on “original public meaning.” These findings are also consistent with the early history of federal public administration, which corroborates a common understanding that Article II’s vesting of executive power permitted substantial legislative control over the allocation of decisional authority within the executive branch.

If that seems an uncharitable, even tasteless observation, so be it. I’ve become increasingly concerned, as my recentcolumns have suggested, that the conservative majority is permitting the court to become an agent of partisan warfare to an extent that threatens real damage to the institution. Justice Scalia’s outsize role on and off the bench contributed to that dangerous development to an outsize degree.

Apparently the Court becomes "an agent of partisan warfare" when it decides some of its cases in a conservative direction (she goes on to criticize (of course) Shelby County (the Voting Rights Act case) and Citizens United, and well as the recent order staying the EPA's Clean Power Plan). And apparently the desired "reset" is that the Court not reach decisions like this anymore.

In reality, though, the current Court is not conservative and there is no "conservative majority." There has been a lot of talk about the need for a "compromise" candidate for the recent vacancy. But the short of it is this: the current Court is a compromise. In closely divided (5-4 or 6-3) cases, conservatives win about half the time, and liberals win about half the time. True, there's Shelby County and Citizens United (and Heller and McDonald and Hobby Lobby) but there's also Obergefell and Windsor and NFIB v. Sebelius and Arizona v. United States and Graham v. Florida and Boumediene. Neither political side is particularly happy with the way the Court has been deciding cases.

The current Court is a compromise chiefly because of one person, Justice Kennedy. So those who want a compromise candidate should want someone like Justice Kennedy -- a Justice who (maddeningly for some) votes about half on one side and about half on the other. People like Linda Greenhouse, however, show no indication that this is what they want, or even that they recognize Justice Kennedy as the controlling compromise figure that he is. Shelby County and Citizens United had Kennedy in the majority; taken in context, they are part of the Kennedy compromise, not evidence of right-wing domination, because they are balanced by liberal decisions with Kennedy in the majority (Obergefell, Boumediene, etc.). Compromise doesn't necessarily mean middle ground; it may mean win some, lose some. If Greenhouse et al. are serious about compromise, they need to be able to lose some.

I doubt, though, that we could find another Justice Kennedy even if we wanted to. Few people are so strong-willed and ideologically eclectic. It would be hard to identify them in advance. (Though Judge Kozinski of the Ninth Circuit is an example). And it would be hard to confirm them if we knew about them.

So I continue to think that, if there is going to be a compromise candidate, it instead needs to be someone who take a strong position of judicial restraint. A judicial restraint candidate effects a compromise in a different way from Justice Kennedy; judicial restraint means that neither side gets to use the Court as an instrument of change in close cases (no Citizens United, no Heller, no Obergefell).

Longtime readers will easily guess that I generally prefer the jurisprudence of Antonin Scalia to that of, say, Ruth Bader Ginsburg, and that I would prefer the next Supreme Court justice be more like him than like her. But I would also prefer to live in a country where the fate of the republic did not turn quite so sharply on which of nine unelected lawyers happens to die in a given year.

At this point, however, it cannot be otherwise; the battle we are about to enter was foreordained years ago. We can argue about who started this escalating tit-for-tat war over the court, but who cares? Both sides have been down in the trenches for some years now, and both sides fight dirty whenever they think it’s to their advantage. The stakes are too high to do otherwise.

If we want to stop this before the next Pyrrhic victory, the answer is not to whine about how awful the other party is; it’s to lower the stakes. Far too many people on every side want to do an end run around the legislation process by getting unelected judges to declare their particular concerns beyond the reach of legislators. Why bother tediously lobbying senators and representatives, when you can simply win the White House, appoint a few judges, and get them to transform your most ardent desires into untouchable rights?

02/22/2016

Jack Balkin agrees with Eric Posner that if the Democrats fill the seat vacated by Justice Scalia, there will be a significant change in liberal arguments:

The liberal constitutional theories of the past twenty-five years had to come to terms with a conservative majority that had no qualms about using judicial review to promote conservative constitutional values. Therefore many liberal theorists advocated various forms of judicial restraint, judicial minimalism, popular constitutionalism, and, in general, taking the Constitution away from the courts.

Eric is right that if the balance of power in the federal courts changes dramatically, liberal constitutional theories that focus on the courts will make a comeback, as will the work of earlier Warren Court defenders like John Hart Ely and Ronald Dworkin. Who knows? Perhaps Laurence Tribe – or his appointed successor – will take up his famous treatise once again.

Let’s pause to examine this claim. What Jack appears to saying – admitting – is that the liberal constitutional theories have been strategic. The liberals are not arguing what they believe as a matter of first principle. They are engaged in strategic arguments in an effort to foreclose the conservatives from deciding cases in ways the liberals don’t like.

Some years ago, Sai Prakash reviewed a Cass Sunstein book advocating judicial minimalism. Sai called out Cass, claiming that Cass only wanted narrow judicial decisions when the conservatives were in the majority. When the liberals were in the majority, Cass would replace judicial minimalism with judicial activism.

Sai’s claim was thought to be quite provocative by some at the time, since it accused Cass of a type of dishonesty. But unless I misinterpret him, Jack is admitting that Sai was generally correct. (Jack does not mention Cass Sunstein by name but he does mention his theory of judicial minimalism).

It is not merely Jack who acknowledges this argument. In the USC Law Journal, another prominent liberal constitutional theorist defends something like this approach. Dick Fallon, in what is a quite interesting article entitled How to Choose a Constitutional Theory, argues that it is permissible (and perhaps even required) that we adjust our constitutional theory to the circumstances of the time. In particular, we should take into the personnel who predominate in the judiciary. In other words, how judicial discretion we advocate should depend on whether we believe the judiciary will pursue what we regard as the correct values. Dick argues that one needs to be careful about such adjustments. If one is too short term about these matters, then it risks undermining our constitutional culture, with people accusing one another of holding unprincipled, strategic theories.

Think about what the liberals did in this country. During the New Deal, the liberals advocated judicial restraint. The judiciary should not enforce enumerated powers federalism, separation of powers restraints on delegation, and substantive due process. When the liberals came to dominate the judiciary, they implemented that judicial restraint vision. But then they did something else: They forgot judicial restraint in the areas where it interfered with liberal values. Enumerated powers federalism was retained, but substantive due process was reinvented in the form of protecting liberal values. Economic values, such as liberty of contract and property, was not protected for no good reason other than liberals didn’t like it.

Many people on the right believe that the liberals have been and continue to be strategic about such matters. But since it involves attributing a kind of bad faith to the other side, it is often not asserted. But in this case, the argument is made by the liberals.